On 4 April a law was introduced giving police the power to impose an instant 80 fine on employees in bars and pubs who sell alcohol to a ‘drunken person’. This new Penalty Notice for Disorder is part of the government’s latest attempt to provide the police with tools that will be effective in their drive to reduce the problems of alcohol-related public disorder.
The government’s view is that this new power will help the police to target the licensed premises that contribute to disorder problems. Home Office minister, Caroline Flint, said: “This offence will get home a very strong message to bar staff who wilfully sell drink to people who have had too much and who are contributing to a much wider social problem for communities.”
Measures intended to tackle binge drinking have been welcomed by many agencies, but employers operating licensed premises expressed concern about the practical implications for bar managers and their staff. Of course, it has been an offence for licensed premises to serve people who are drunk for some time. So the government believes it is reasonable to expect that bar staff will be trained already to recognise when somebody has had too much to drink and how to deal with people who cause problems.
However, in a crowded pub or club, it may not be that easy to identify a ‘drunken person’ who asks to be served. More importantly if an on-the-spot fine is imposed, who is going to pay it? Rather unhelpfully, the Home Office said each licensed premises will have to decide whether the fine will be paid by management or by the individual bar person. Given that if someone disagrees with a fixed penalty notice they can go to court, it is important to know who is liable for the fine.
In the absence of clear guidance, responsibility for the payment of a fixed penalty will have to be sorted out between employer and employee as part of the terms of employment. This situation is not the first of its kind. For example, it is not uncommon for fines and fixed penalties for driving offences committed by employees in the performance of their duties to become their personal liability under their employment contract. Many employers are keen to encourage a good standard of driving and also to avoid picking up insurance excesses and illegal parking fines. To help to achieve these aims, the employment contract will have a term imposing personal liability on the employee and giving the employer the right to deduct the fine or penalty from wages.
Since there is no clear personal responsibility for paying a fixed penalty, it will be difficult for the employer to insist on its bar staff paying. After all, they are employed to sell drinks. A new term imposing personal liability on them will be a variation of contract. It is unlikely that many bar staff will readily agree to such a variation. The employer who recoups any fines they have paid from an employee’s wages will have made an unlawful deduction.
There is another practical issue which is not taken into account by the new law. In the case of a driver, it is nearly always clear who is responsible for the original offence and who incurred the fine or penalty. On a busy night it may not be so easy for the police to determine which member of the bar staff served the drunken person and the employee they select might want to challenge the penalty in court.
The best advice is for managers of licensed premises to review their training procedures, and put new or updated ones in place for all their bar staff. But however much training someone has, there will still be difficult areas. For example, what is the definition of a ‘drunken person’? People can drink more than is good for them but can still present themselves as in control. Busy pubs and clubs already face significant practical problems in monitoring their customers. Will they have to monitor their bar staff as well? Much will depend on what the police are really looking to clamp down on.
While this legislation does not produce anything that is really new in law here, what is clear for employers and employees is that on-the-spot fines will do nothing for the employment relationship and could introduce unwelcome tensions.
Roger Byard is a partner in the employment law department at Cripps Harries Hall